Tuesday, May 16, 2017

Is It Bad That Republicans Did Not Read Their Terrible Health Care Bill?

by Neil H. Buchanan

Although the story about Donald Trump's firing of James Comey as FBI Director rightly dominated last week's political discussion (and continues to do so, with unsettling new twists in the story emerging at least once a day), the Republicans' farcical effort to repeal the Affordable Care Act also continues to generate news.

In early May, Republicans in the House finally limped across the finish line with a new version of their noxious American Health Care Act, which some people call TrumpCare (although I prefer to call it TrumpRyanCare). The political blowback has been appropriately fierce. To my surprise, however, I have found myself -- in one very limited way -- sympathetic to some Republican congressmen who have subsequently been mocked unfairly.

To be clear, we are still talking about a terrible, terrible bill. It was passed without hearings and before the Congressional Budget Office could provide estimates of its effects, but it is a close sibling of the bill that CBO estimated would cause 24 million people to lose health insurance, among other inhumane effects, all in the service of a huge tax cut for the richest Americans. And we know that the changes in the bill made it even more cruel, because it was the most hyper-conservative Republicans in the House who insisted on those changes.

Moreover, that House Republicans celebrated over bad beer at the White House after they managed to scrape together just enough votes to pass their version of the bill is not just bad form but is also an indication of how low Republicans have set the expectations for themselves.

After all, Republicans have a 45-vote majority in the House, but it took them more than three months and multiple public pratfalls even to get this monstrosity passed by their gerrymandered majority. And this is in the pursuit of the one thing that all Republicans have been saying for years was their Day One priority: "Repeal Obamacare."

Similarly, the other touted success of the Trump presidency thus far is that they managed to fill the stolen Supreme Court seat with a hard-right movement conservative. I can see why they are happy about having done something that they wanted to do, but the idea that this is an example of skillful governing is nonsense.

Republicans have 52 votes in the Senate. No one seriously imagined that they would let the filibuster stand in their way when it came to ramming through Gorsuch's confirmation vote. So what is the big accomplishment? Are we supposed to be impressed that Trump did not nominate the judicial equivalent of Betsy DeVos (who was, we must remember, also confirmed by Senate Republicans) or Sean Spicer? What should have been a simple check mark on their to-do list suddenly became evidence of brilliant strategy.

But back to TrumpRyanCare. The public is not amused, and large numbers of people have protested the bill, in particular at town hall meetings. Angry voters have confronted and mocked Republican politicians, who in turn have been caught saying things like this: "Nobody dies because they don’t have access to health care" -- a claim that was unsurprisingly deemed a pants-on-fire lie by PolitiFact.

The bill should die in the Senate. The Republicans, and especially Trump, should quietly allow the whole "repeal Obamacare" hysteria to fade into history. They won some elections with it, which is great for them. But why take political ownership of our mess of a health care system with a bill that would make it immeasurably worse? Are the people who fueled the Tea Party going to vote for Democrats in retaliation for inaction? It would seem that the real danger for Republicans is that they will lose some working-class conservatives after they discover that the AHCA would be very bad for them.

The people who voted for this bill deserve to be confronted and shamed (although they have no shame). What they do not deserve is to be faulted for not having read the full text of the bill. Yet that is exactly what has happened, with multiple news reporters having put Republicans on the defensive with the simple question, "Have you read the bill?"

Several video clips of Republicans members of the House squirming on camera made the rounds last week, becoming the subject of repeated mockery on the late-night talk shows. And it admittedly makes for good TV and high comedy, offering a dollop of satisfaction to see these smug, uncaring political mediocrities put in a bad light.

Have I made it clear how little sympathy I have for these people? And I should also point out that there is a great deal of satisfaction in seeing Republicans once again being exposed as hypocrites and opportunists, because they were the ones who complained about Democrats not knowing what was in the ACA, emphasizing how many pages were in that bill, and so on.

But as satisfying as all of this might be, it is nonsense. Moreover, it is ultimately harmful to good governance.

I am very aware that I am writing as a law professor, and thus that I might not be expected to say that it is acceptable for people not to read legal texts.
In two recent columns in which I discussed the dishonest attacks on supposedly closed-minded college students (here and here), however, I noted that it is simply a fact of life that people must make choices about what to read and what is not worth reading.

I noted in one of those columns that I do not even read the comments from some people who directly respond to my columns on message boards, because they have exposed themselves as fools (sometimes illiterate ones to boot) in earlier comments. I further noted that, like everyone else, I cannot possibly have read every article or book that might weigh on an issue that I care about.

How can I say that I am sure of anything if I have not engaged with all of the ideas and arguments out there? How can I not? Everyone has to make decisions about how to allocate their time, and we all decide every day not to read a lot of things -- including important contractual obligations like user agreements, which have legally binding implications for everything that we do.

One might object, however, that the TrumpRyanCare bill is not a mere reading assignment for a health law class. It is real policy, with life-and-death implications. And it is. Yet I am still saying that it is silly and wrong to ridicule congresspeople who admit that they have not read the bill.

One of the unfortunate victims of this gotcha question offered a perfectly good answer, which is that he relies on his staff and other resources of Congress to inform him about a bill before he votes on it. That is what committee reports are for, and it is completely reasonable for a legislator to expect to understand a bill well enough to vote on it without having read every word.

And what if a congressperson actually decided to sit down and read through the bill to check every last syllable? It is not as if one simple run-through makes it obvious to a reader what a bill means. As a tax law professor, I can fill an entire two-hour class discussing the implications of one short section of the Internal Revenue Code.

It is thus simplistic, wishful thinking to imagine that legislation will be improved if everyone is forced to "read the damn bill." This in turn means that a Member of Congress who does not want to be ridiculed by Stephen Colbert has to make a choice: lie on camera when asked a stupid question, or waste his time doing something that does not actually improve the legislative process.

Note also that someone who did choose to say that he had read the entire bill would simply open himself up for more gotcha questions, because an enterprising reporter could certainly follow up with, "Oh good, you've read the bill. So you're obviously familiar with Section 3033, regarding leasing of medical equipment. What does that section mean? What? You don't know?!"

None of this in any way excuses a person from not knowing what she or he is voting on. The evidence regarding the TrumpRyanCare bill in particular suggests that it was not possible for the normal processes to work, such that the people who voted for it had not had the chance to determine what it contains through standard means.

In addition, there are plenty of people who simply vote as they are told by their party leaders (and by lobbyists, interest groups, and so on). They are being truly irresponsible, and they should be condemned for it.

I am most definitely not even saying that the men who were ridiculed last week did not deserve condemnation for other reasons, because it is quite likely that they truly do not understand what they are trying to inflict on the American people.

This is yet another situation in which a reasonableness standard is lurking in the background. "I cannot possibly read and understand every word of every section of every law that we might pass" cannot become an excuse to say, "Therefore, I can vote on a law without having at least a reasonably clear idea about what it contains."

Two imperfect analogies come to mind, drawn from recent political controversies. When Republicans voted to eliminate the filibuster for Supreme Court nominations, they argued that Democrats had no standing to complain because the Democrats had eliminated the filibuster for other judicial appointments. See, you're just complaining about losing the election!

The problem is that Democrats only changed the filibuster rules after Republicans had so badly abused it that it had become obvious that they were no longer using it for its historical purposes, which had been reserved for rare and extreme circumstances. Saying that Democrats were hypocrites because they claimed to see value in the filibuster even as they eliminated it misses the point that the Republicans had moved us out of a zone of reasonableness.

Similarly, House Speaker Paul Ryan and others have defended Trump's firing of Comey by noting that the president has the legal authority to fire the FBI Director. What they ignore is that only one FBI Director has ever been fired, and that was because of flagrant misuse of public funds, among other unacceptable behaviors.

"A president can fire the FBI director, so it's not important how or why he does it." "Most people agree that the filibuster can serve an important function, so it does not matter how often or why we use it." "No one can read every word of every bill, so it does not matter whether we understand the bill at all."

All three of these nonsensical statements reinforce the fundamental fact that responsible governance cannot be based on simplistic absolutes.

People were rightly dismayed when they learned early in Trump's presidency that so much of what we rely on to discipline the behavior of government actors is not legally enforceable. But it is not just Trump's refusal to release his tax returns or his willingness to gleefully exploit his office for personal gain that we should be talking about.

The responsible process of legislation involves multiple people working together, passing what must ultimately be imperfect laws. The Republicans are no longer doing any of that. But the evidence of their dishonesty and malfeasance lies not in the fact that no one has read any particular bill from beginning to end.

The problem is much more fundamental. Republicans' are no longer even bothering to pretend that they are doing anything but passing garbage legislation about which they know nothing other than that they want to pass it -- quickly, and for nakedly political reasons.

4 comments:

Even assuming it were possible, what would be gained by everyone reading every bill? If I were Congressperson from my Bronx district and a bill on, say, mining, came up, what would I do? Mining is not an industry in my district, I don't represent any miners, and I probably don't have any mining executives living or working in my district either. Odds are that I would not be sitting on a committee that deals with mining issues. In short, I wouldn't know anything about mining and it would be a great waste of time, from the point of view of the people and interests I do represent, to bone up on it. If I read the bill, I probably wouldn't understand it, and would be unable to evaluate it on its merits to the extent that I did understand it.But when a bill comes up through the ordinary course, vetted by the relevant committee staff and executive agencies, and the CBO, and endorsed by fellow Congresspersons who do know something about mining and whose general political outlook I share, I can read the committee reports and have reasonable confidence in the process and vote accordingly -- much as a dean whose background is in English and a provost whose background is in physics can responsibly sign off on the tenure application of an anthropologist.

As one of the individuals who did indeed ridicule Republicans for not reading their bill before voting to approve it let me see if I can mount a defense. First of all we would all acknowledge that Mr. Buchanan’s point about it not being necessary to real the legislation is valid in part. One thing in particularly is that the legalese of legislation is so difficult to comprehend that in many cases reading a bill does not enlighten one whatsoever. As a person who did read the bill I can state with certainty that this was the case with the ACHA.

However, if a legislator does not or cannot read the bill then as Mr. Buchanan points out it is incumbent upon the staff to understand the legislation and make certain the legislator understands the legislation. That did not happen in the ACHA instance, in fact it could not happen because the bill was being revised almost up until the time of the vote. Republicans were being told to vote on it as a matter of party discipline, not as a matter of policy.

To cite the most egregious example take the case of western New York Congressman Chris Collins (full disclosure, I used to live in Buffalo, was acquainted with Mr. Collins and formed the opinion that he is an ideological idiot). Mr. Collins not only did not read the legislation but had to be informed by a news reporter than the bill contained a provision that eliminated a special provision that provided health insurance for about 19,000 of his constituents. Mr. Collins’s response was to ask the reporter to explain that to him. And notice his lack of sympathy or concern for those losing insurance. Good grief.

From the Buffalo News

“Told by a Buffalo News reporter that the state's largest loss of federal funds under the bill would be $3 billion annually that goes to the state's Essential Health Plan, Collins said: "Explain that to me."

The Essential Plan is an optional program under Obamacare, offered only by New York and Minnesota, that provides low-cost health insurance to low- and middle-income people who don't qualify for Medicaid. State Health Department figures show that more than 19,000 people in Erie and Niagara counties were on the Essential Plan in January.

Asked by The Buffalo News if he was aware of the bill's cut in funding to the Essential Plan, Collins said: "No. But it doesn't surprise me for you to tell me that there were two states in the nation that were taking advantage of some other waiver program and New York was one of the two states."

As Mr. Buchanan states committee reports are very important here and one can gain a great insight into legislation by reading them. But there was no committee report here, was there? The entire process was rushed for the sole reason that if given the time to understand the implications and details of the ACHA legislation public opposition would have made it impossible for even the Republicans to pass it. It was legislation by the ignorant.

In 1953 in law school, I took a federal tax course, then the 1939 Internal Revenue Code. I completed law school in 1954. That year the 1954 IRC was enacted. Over the years as my law practice developed, I used more and more tax law and earned an LLM in Taxation part time. I did not hold myself out as a tax attorney but federal taxes were interwoven with my corporate/business/real estate practice. Many major tax bills were enacted during my career after the 1954 IRC. I attended many tax seminars. To better understand federal taxation, I heavily relied upon Congress' Joint Committee on Taxation which to a great extent was non-partisan, being made up of tx professionals. The Committee's reports helped greatly in understanding a new federal tax statute.

I'm not aware of a credible House committee that was involved with the House's Repeal/Replace Bill. As David points out, the Bill was rushed through to fit within the first 100 days of the Trump Administration. How much knowledge of the Bill could Republicans voting for it have had? There was no CBO scoring. The Bill was political performance artlessness. ACA went through a number of hearings over many months. Those who voted for ACA may not have read it but there were explanations in place. Had Republicans been interested in health care, they could have participated and perhaps have improved the then ACA bill. But Republicans had made the decision to thwart Pres. Obama from the very beginning to make him a one-term president.

This brings to mind the disdain the late Justice Scalia had for legislative history. But in the field of tax legislation, the Joint Committee on Taxation helped in explaining a new tax law not only to members of Congress but to tax practitioners as well.

The public reaction to the House Bill has been worrisome for many who have had health care insurance under Obamacare because House Republicans cannot assure the public of how the House Bill impacts the insurance they have under Obamacare.

I don't expect each member to read each bill & something along the lines of the first comment (down to the location) does come to mind. I don't think some average gentlemen farmer understood the nuances of the Judiciary Act of 1789 either.

There is a division of labor, committees, staff and so forth. But, as the second comment might suggest, there is a middle ground. An ability and need to understood the basics, especially when it is as basic as a repeal and replace of PPACA. Also: